FOR IMMEDIATE RELEASE:
NOVEMBER 27, 2001

SUPREME COURT DECLINES TO REVIEW ADARAND ANY FURTHER

In yet another historic ruling, the United States Supreme Court declined to review or otherwise address its 1995 ruling in the matter of Adarand Constructors v. Mineta.  The Adarand case is now dead.  Ten years of litigation in this matter has been  concluded.

In a unanimous unsigned ruling issued this date, the Court concluded that it could not and would not address the merits of  Adarand’s affirmative action complaint any further.

Let us briefly address the procedural history.

In 1989, the Central Federal Lands Highway Division, which is part of the United States Department of Transportation, awarded the prime contract for a highway construction project in Colorado to Mountain Gravel and Construction Company.  Mountain Gravel then solicited bids from  subocontractors for the guardrail portion of the project.  Adarand Constructors, a Colorado based, white male owned  highway construction company specializing in guardrail work (and later certified as a DBE), submitted the lower bid.  Gonzales Construction Company, a certified DBE, submitted a higher bid.  The prime contractor’s terms provided that Mountain Gravel would receive additional compensation via the subcontractor compensation clause (SCC) if it hired DBE contractors.  Since Adarand at that time was not a DBE, it did not receive the Contract.

In Adarand Constructors v. Pena, (DOT Secretary Mineta’s name has been substituted for Mr. Pena and later Mr. Slater), 790 F. Supp. 240 (D. Colo. 1992), the District Court utilizing an intermediate scrutiny standard (which was in effect at that time) ruled that the program was constitutional.

In 16 F. 3d 1537 (10th Cir 1994), the District Court’s ruling was affirmed.

In what has been considered “THE” Adarand case, the Supreme Court reversed the 10th Circuit in 1995 (515 US 200 ).  The text of that decision can be found at www.mbeldef.org/alerts.htm. It stated that federal programs that benefit minority owned businesses must pass the strict scrutiny test (a change from the intermediate scrutiny test—strict scrutiny is more difficult.  This strict scrutiny test has two elements.  First, there must be in existence, a compelling governmental interest justified with specificity that shows particularized findings of past and/or present discrimination in the marketplace.  The second test is whether the program in question is sufficiently narrowly tailored.  That is, the government must demonstrate that the program is reasonably designed to benefit only the victims of such discrimination.  An expert analysis of the 1995 decision can be found in the University of  Maryland School of  Law’s Journal of  Contemporary Legal Issues Volume 7, Issue 2 in an article entitled “Adarand 101” by the Honorable Parren J. Mitchell and John A. Turner, Jr.

The Supreme Court remanded the case to the Tenth Circuit which in turn remanded Adarand back to the District Court.  Judge Kane of that Court declared the program unconstitutional in light of the new strict scrutiny test (965 F. Supp. 1556) D. Colo 1997).  See: “The Return of Adarand and Other Affirmative Action Issues by John A. Turner, Jr, National Bar Association Magazine (November/December 1997).

The Tenth Circuit vacated Judge Kane’s decision and instructed the District Court to dismiss the case because the case had been declared moot in that Adarand had recently been certified as a DBE.  Thus, it was able to exercise ultimate hypocrisy by taking advantage of the very program that it was seeking to kill. (169 F. 3d 1292  10th Cir 1999).

On January 12, 2000, the Supreme Court rendered a procedural decision in this matter.  Its decision (120 S.Ct. 722 ) reversed the 10th Circuit’s ruling concerning mootness.

The Tenth Circuit emphatically  stated that the DOT program was Constitutional and that the matter was moot.

On March 26, 2001, the Supreme Court agreed to review Adarand once again.

Today,  the Supreme Court has erected a headstone completing the burial of this painful and tortuous case.  At risk, MBELDEF argued, was the efficacy of all affirmative action programs. See: “Adarand Revisited”, MBE Magazine May/June Issue by John A. Turner, Jr.

During the argument of the case in October, Justice O”Connor asked the government lawyer, “What are we supposed to do now?” Later, Justice Breyer said, “Things have changed”. (See: Dallas Morning News October 31, 2001.  As a sidebar, the “great Washington Post” paid little attention to the argument of this case).

So, the 1995 Adarand ruling stands unchanged.  We are reminded of Justice O’Connor’s words in that 1995 ruling that emphasized that the strict scrutiny standard placed upon programs designed to remedy proven acts of discrimination was not meant to be a “fatal” standard.  It was a standard that has been met in the past and can be met again.  That 1995 ruling merely set forth a “plan for success” with respect to constructing programs designed to remedy proven acts of discrimination in the marketplace.

Anthony W. Robinson, President of MBELDEF said, “We are pleased to learn that the Supreme Court has declined to review this matter any further.  In our brief filed with the Court (www.mbeldef.org/alert080301.htm),  we noted that Article 5 of the 14th Amendment gives the Congress absolute authority to develop programs designed to remedy proven acts of discrimination in the marketplace.  However, in addition to the points made in our brief, credit for the termination of this case should be shared with each and every person and organization that realized that the issues contained in this matter are highly political and must be treated as such.  From this point forward, we must in the words of  our Founder, former Maryland Congressman Parren J. Mitchell, be eternally vigilant to ensure that discrimination in the marketplace is terminated; we must rededicate ourselves to the principle that justice must prevail.”